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The Counterfactual Yardstick

Normativity, Self-Constitutionalisation and the Public Sphere


Karolina Cern

The chief concern of this book is to discuss a democratic legitimation for modern law. Investigation is therefore steered towards current debates on processes of Europeanisation and the issue of self-constitutionalisation of a democratic polity. This turns out to be a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal, and hence to processes of evolutionary constitution making as well as institutional and societal constitutionalisation. Developing democratic legitimation in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds and unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres.
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Chapter IV Institutional Intersections or Contractarianism by Habermas


As far back as the 1970s and 1980s, Habermas directs his investigations towards processes and procedures of justifying a legal system. The main theme here is the post-conventional, and thus modern, stage of law development, which recognises that—as he writes in The Theory of Communicative Action—‘the domain of legality as a whole stands in need of practical justification’1. Further, this is understood in terms of a consensus that requires the conformity of legal and moral principles, because the conformity enables the observance of the law as a mark of respect, since its principles have become worthy of such recognition2. In my view, this very issue has been the main theme of the Habermasian investigations up until now, and it has been elaborated more in-depth from the constructivist standpoint of Kantian provenance, which I will try to demonstrate in this chapter. As a result, Habermas’s application of the constructivist means to the philosophy of law leads to the contractarian paradigm of the post-conventional stage of the reflection.

1. A short Outline of the Basic Ideas that Characterise Contractarian Theories

The most significant idea of contractarian theories, in general terms, has always been to determine the source of the legitimation of such rules of a common political order and erected on them institutions, which all citizens will protect and ← 209 | 210 → consent to, expressed on the part of those citizens to whom all basic rules and political settings are addressed.

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